Commonwealth v. Weber , 1895 Pa. LEXIS 870 ( 1895 )

Opinion by

Mr. Justice Dean,

The defendant having been found guilty of murder of the first degree, and having been sentenced accordingly, he presses this appeal.

The testimony was ample to establish, in substance, these facts: — Weber was a laborer, twenty-six years of age; from his birth had lived in the city of Reading; in April, 1892, had married Agnes Klemmer, a daughter of the deceased, Justus Klemmer, of Reading. Soon after marriage, they went to housekeeping, and continued to live together until some time in the early part of the year 1893, when the husband was convicted of a criminal offense, and sentenced to one year’s imprisonment in the Berks county jail. This resulted in breaking up the home ; one child having been born to them, the wife, with this child, went to her father’s house. The father and daughter took the furniture and household goods, with some of Weber’s clothing, and stored them in the house of Walter Miller, a brother-in-law of Klemmer; the child remained with the grandfather, and its mother went out to service. Matters continued in this condition until May 14, 1894, when Weber was discharged from prison by reason of expiration of term. He immediately sought out his wife where she was employed, and had several interviews with her, but they did not again live together. Weber thought, and probably correctly, that his wife’s father was opposed to her living with him. He then determined to get possession of some of the household goods stored at Miller’s, asserting they belonged to him; had one or more notices sent to his wife, by aldermen, demanding them. On the 7th of June, he bought a revolver at one hardware store and cartridges at another, then went to his brother’s house and loaded the pistol. About six o’clock on the evening of the eleventh of June, he went to Miller’s house, where the furniture was stored, and asked Mrs. Miller if his wife and her father were there yet; she said not; he said they were coming to divide the furniture; he waited about an hour on the steps, until they came. Some of the furniture was in the cellar, and at the suggestion of Klemmer, the three, Weber, his wife and Klemmer started down the steps; Miller, just then coming in, followed with a light; when they got to the cellar, they undertook to set apart for Weber articles that belonged to him; he demanded to know where a bedroom set was, belonging to him; Klemmer replied, he had all that belonged to him, and more too; he then demanded his marriage certificate; Klemmer replied, his — Weber’s wife had that, and she had a right to it; then Klemmer started to leave the cellar by a rear door opening out into the yard ; Weber made a profane answer, drew a revolver, aimed at Klemmer and snapped it, again pulled the trigger, this time discharging it, shooting Klemmer in the arm, shattering the bone, again shooting him when he fell or was falling; this shot in the brain, causing almost instant death, — another shot, either preceding or following these two, it is not clear which, was fired, causing a slight wound on the arm. He then followed his wife to another part of the cellar, thrust the revolver in her bosom, snapped it, and ran out into the alley. There was evidence of threats made by him against his father-in-law, both while in prison, and after he was discharged. He denied, on the witness stand, these threats, and declared that Klemmer and Miller assaulted him in the cellar ; that in self-defense he drew the revolver, when Miller caught and pulled his arm, causing its discharge. His story, throughout, at best, was improbable, and the jury did not believe him. It was improbable, not alone because in flat contradiction of Miller’s statement, the only other competent witness of the shooting, but because its improbability was inherent in the story itself. If Miller had not testified at all, men of ordinary observation and experience would not have thought it credible. It is seldom, in the trial of felonious homicides, the evidence of malice aforethought, and the fully formed purpose to kill, is so abundant and convincing.

The learned judge of the court below, in a charge, clear, impartial and comprehensive, as to the law applicable to every phase of the evidence, left the defendant’s case to the jury. In fact, so impartial was the charge, that the able counsel for defendant do not complain of it.

But on appeal, fourteen assignments of error are pressed upon us for consideration. Nine of these complain of illegal conduct or speech during the trial, by counsel for the commonwealth; two of them aver fatal irregularities in impaneling the juiy; one, to bringing the prisoner into court manacled in presence of the grand jury, which was made the ground for a motion to quash the indictment; one, to alleged error in the admission of testimony of a witness; and the fourteenth, and last, that the evidence did not warrant a conviction of murder of the first degree. As to this last, we have already spoken; the evidence fully warranted the verdict. As to the others, the substance of them was considered by the court below in a very full opinion, overruling the motion for a new trial. The gravity of the consequences of this judgment to the defendant, has, however, moved us to re-examine his complaints of error, to see if there be any such merit in them as calls for reversing the judgment.

The first assignment is: — “ The court erred in allowing counsel for commonwealth to comment on failure of defendant to call his wife as a witness.” The wife saw her husband kill her father; she was incompetent as a witness for the commonwealth, because she could not be called to testify against her husband; she was, however, a competent witness in his behalf; he could have called her to the stand; if his statement was true that he acted only in self defence, and the pistol was discharged in a scuffle, without intent to kill, why did he not call her to corrobórate him ? Counsel for commonwealth argued, the fair inference was, her testimony would have contradicted her husband; this was not unwarranted comment; the force of it was for the jury; if she had been a competent witness for the commonwealth, and had not been called, it would have been allowable for defendant’s counsel to have argued it was because her testimony would have contradicted Miller. There is, under the circumstances, no legal presumption raised by the refusal to call a competent witness ; it is simpty a fact for the consideration of the jury, entitled to such weight, as, in view of all the circumstances of the particular case, it ought, in their judgment, to have.

The second assignment is, “ That the court erred in allowing commonwealth to offer to place the wife of defendant on the stand as a witness for the prosecution, and in not striking the offer from the record.” It is argued, that the testimony of the wife was clearly inadmissible, and must have been so known by counsel for commonwealth, but, although the offer was overruled jret, the mere fact of its having been made was highly prejudicial to the defendant, and was so intended to be.

We know of no way the court can rule on an offer without hearing it; it was to call the wife, if defendant did not object; defendant did object, and she was rejected; there could have been no other ruling except to admit her testimony, and this would have been manifest error. The assignment in effect .is, that the commonwealth called an incompetent witness, the defendant objected, and the court sustained the objection, therefore, the court erred. The offer being overruled, that, necessarily, made it a silent part of the record, and it had no effect in the trial, that striking it from the record would cure.

The third, fourth and fifth assignments complain, that the court erred in permitting counsel for commonwealth to argue matters of fact to the jury, not sustained by any evidence. The remarks of counsel as here presented, were taken down by the private stenographer of counsel for defendant, and not by the court reporter. Counsel for commonwealth deny thejr were made as here printed; the stenographer, when examined under oath, does not testify the report is full, nor does he testify with any positiveness that it is accurate; but assuming we have before us a correct report, the words should have been objected to at the time they were uttered. No judge can be expected to anticipate the line of argument counsel will adopt, and caution him against improper speech; a judge may and often does, of his own motion, stop counsel in improper statements, and administer rebuke. But he may not give close attention to all that counsel say when addressing the jury; nor is he required to; that is the duty of opposing counsel, and if the argument be objectionable, the objection should at once be made to the court; then the words can be taken down by the official reporter, and be made the subject of ruling by the court, and review here. That counsel on one side may go into court with their own stenographer, and take down the address of the opposing counsel to be made the subject of criticism and objection, not at the trial, but afterwards in this court, is so unfair to the court below, and so obviously prejudicial to an even-handed administration of justice, that we dismiss these assignments without further notice.

The sixth assignment is, that the court permitted counsel in the argument to attack the character of defendant, not from the evidence, but by inference from the fact that he had called no witnesses to testify to good character.

If this was done as alleged, clearly it was unwarranted. The previous character of one charged with a crime has no bearing whatever on his guilt, unless he chooses to make it the subject of consideration by attempts to prove a good character. If he do not do this, as he did not here, the commonwealth can offer no evidence on the subject. He is entitled to the presumption of innocence until his guilt be proven by the commonwealth by evidence to sustain the particular averments in the indictment to which he has pleaded; he may then offer evidence to contradict that adduced by the commonwealth; and to establish his innocence, or to raise a doubt as to his guilt, may adduce evidence of previous good character; then, and then only, is the door open to the commonwealth to impeach his character preceding the crime charged. To permit an inference of bad character to be argued, because he has not adduced evidence of good character, is a palpable evasion of a well settled and humane rule. Prisoners are not to be convicted, because their past lives indicate they are capable of committing crime, but because the proof shows, beyond a reasonable doubt, they coni' mitted the particular crime charged in the indictment. Until thejr raise the question of previous character, the commonwealth cannot, either by evidence or argument.

But, how are improper statements and unlawful inferences to be taken advantage of on a review of the proceedings here ? Clearly, as we have already said in reference to the other assignments of error, by objection at the trial. Prompt objection then, we doubt not, would have relieved defendant’s counsel from the burden of pressing the assignments of error here. The court’s attention was not called to the matter bjr protest or objection; there was no erroneous ruling by the court; there is not even upon the record, an official and trustworthy report of the words. In this court, an error of speech by antagonistic counsel is complained of, and a reversal of the judgment sought because of it. If the commonwealth had elicited from a witness on the stand irrelevant or incompetent testimony without objection, and there had been no request by defendant to the court to withdraw it from the consideration of the jury, it would hardly have been argued, in view of the settled law, that this court should reverse the judgment. His silence in the court below would have been conclusive against his complaint here. And there is no distinction, in this respect, between improper evidence and improper argument. It is the duty of counsel to aid the court by their learning and fidelity, in the administration of justice; any other rule of duty would, probably, lead to very undesirable results; because, without it, the most effective defense astute counsel could make for criminals with a hopeless case on the evidence, would be, by silence, to invite errors of omission and commission by the court and opposing counsel, with the object of securing reversals on review; and thus, by persistent, expensive and vexatious appeals, wear out the prosecution.

The attitude of defendant’s counsel, as exhibited by the record, is, in substance, this: “ Counsel for commonwealth erred in the matter of his address to the jury; I erred by remaining silent when I should have promptly brought his error to the notice of the court by objection ; the court committed no error, but its judgment should be reversed because it did not perform my duty.”

There are, it is true, rare instances, where judgments of the serious character of this one have been set aside because of errors or slips, by prisoner’s counsel, which may have brought about the adverse verdict; but there is no instance of it having been done, where the trial on the whole was so fair as this, and where the verdict was in accord with the overwhelming weight of the evidence.

The seventh, eighth and ninth assignments are to arguments, which though intemperate in language, cannot be said to be without foundation in the evidence.

The tenth and eleventh assignments of error relate to the empaneling of the jury. The forty-eight jurors drawn were not present in court when this jury was called. Whatever inequality, if any, is produced by the right of th¿ commonwealth to stand aside jurors until the panel is exhausted, the right existed; all the jurors present had been called and either sworn, challenged or stood aside ; eleven were accepted, sworn and in the box; the twelfth juror was called from those stood aside; the defendant’s peremptory challenges were not then exhausted; he claimed the right to have called all the jurors' in attendance, before any of those stood aside should be called. As twelve were out in their room deliberating on a verdict in another case, this could not be done without serious interruption of the business of the court. Under the circumstances, it was within the discretion of the court to proceed with this trial, without awaiting the return of the jury then in their room. Especially was this a reasonable exercise of discretion, when the defendant’s peremptory challenges had not been exhausted.

The twelfth assignment of error is to permitting “ the defendant, before indictment found, to be brought handcuffed into the court-room, in presence of the grand jury.”

What reasonable precautions the officer having the prisoner in charge, shall take to keep him safely in his passage from prison to the courtroom, during the progress of the trial, must largely depend upon the judgment of the officer. The fact that he was brought into the courtroom handcuffed, and the grand jury may there have seen him thus secured, does not warrant the inference, that, therefore, they were prejudiced against him in finding the bill of indictment. An athletic young man, charged with a high crime, of course would be securely kept to await trial; while not in court, he would be within prison walls; going to and fro from the court room, escape would be guarded against, either by a prison van or handcuffs; the grand jury would have known this if they had not seen it.

The thirteenth assignment is to the admission of the testimony of George Snyder, a fellow prisoner who testified to threats made by defendant against his father-in-law, while in prison. The witness was called after the testimony of defendant had closed; what he testified to, would have been evidence in chief. It was material as part of the commonwealth’s case. But he was also called to contradict defendant, who had been asked when on the stand, whether he had not made the threats, in substance, testified to by Snyder; he denied he had made them.

The order of introducing testimony, generally, is in the discretion of the trial judge, and we see no abuse of that discretion here. But without this, the evidence was clearly admissible at this stage of the trial, as affecting the credibility of defendant’s testimony.

After a most careful examination, we are all of the opinion, there is nothing in the record, or the assignments of error, which should move us to disturb the judgment; it is therefore affirmed, and it is diz-eeted that the record be remitted to the court below, that the sentence may bé carried into execution according to law.